the incident, while emotional and upset, were
sufficiently reliable to be admitted under the rule. Matter
of C.A., supra.
In State v. Simmons, supra, a 16-year-old deaf mute
was raped. She was taken to a hospital emergency room.
While there she was confronted by the defendant, and in
response to questioning, she identified him as her
assailant. It is now well established in New Jersey that a
statement made in response to an inquiry may still qualify
as an excited utterance if the effect of the exciting event
has not abated. State v. Graham, 59 N.J. 366, 370-71
(1971); Cestero v. Ferrara, supra; State v. Simmons, supra;
State v. Sands, 138 N.J. Super. 103, 107 (App. Div.
1975); State v. Tapia, 113 N.J. Super. 322, 331-32 (App.
Div. 1971). The continuation of physical or emotional
distress in the victim of an exciting event is a strong factor
supporting the reliability and the unreflective quality of
a statement offered as an excited utterance. Cestero v.
Ferrara, supra, 57 N.J. at 504; State v. Ramos, 203 N.J.
Super. 197 (Law Div. 1985) (court finds two statements
made by child victim of sexual assault, one made just after
victim returned home from staying at defendant’s house
the previous night which consisted of victim telling her
mother that defendant had touched her private parts and
the other, made two weeks later, after victim and her
mother drove to defendant’s on an errand whereupon
victim began to cry and expressed a desire to remain in the
car and upon returning home with her mother, became
extremely emotionally upset while describing other
sexual acts of misconduct which defendant committed
upon her, admissible as excited utterances). Cf. State in
the Interest of C.A., supra, 201 N.J. Super. at 31-32 (in
which statements by child victims to their mother
occurring two and three days subsequent to alleged sexual
assault and criminal sexual contact were excluded because
the court found that the children did not make the
statements under the stress of a nervous excitement in
contrast to finding that their nervous excitement had
dissipated by the time they made them); State v. Ryan,
157 N.J. Super. 121, 126-127 (App. Div. 1978)
(exculpatory statement given by defendant charged with
rape to police at the time of his arrest indicating that the
victim had consented to intercourse was not admissible as
an excited utterance).
Admission of a statement as an excited utterance
requires a trial court to balance various factors such as the
time lapse, the nature of the exciting event, the extent of
inquiry, the likelihood of an ability to reflect by the
declarant and the declarant’s mental and physical
condition. Each case must be judged on its own facts.
Hence, it is imperative that an appellate court afford
considerable deference to the findings and rulings of a
trial judge under N.J.R.E. 803(c)(2). State v. Lazarchick,
314 N.J. Super. at 524; Cestero v. Ferrara, supra, 57 N.J.
at 502; Lieberman v. Saley, 94 N.J. Super. 156, 161 (App.
Div. 1967).An excited utterance need not be reported in haec
verba to be admissible; thus, the substance or effect of the
actual words spoken will suffice, such as a police officer’s
testimony summarizing the statements of eyewitnesses to
a crime. State v. Reese, 288 N.J. Super. 133 (App. Div.
1996).In State v. Williams, 214 N.J. Super. 12 (App. Div.
1986), the victim was attacked while walking on a
Camden street late at night and stabbed at least nine
times. A police officer responding to the scene wrote in
his report that the victim told him that the assailant was
“pulling on her clothes.” At trial, the defendant
attempted to introduce evidence of allegedly similar
crimes committed in the area by another individual. The
trial court excluded the evidence, holding that those
attacks were dissimilar to the one in Williams since the
latter assault lacked a sexual element. The trial court
would not allow the police officer to testify regarding the
victim’s statement to him, which would provide such an
element and make the offenses similar. The Appellate
Division held that the victim’s statement to the officer
was admissible as an excited utterance, since it was made
under circumstances indicating the presence of a
continuing state of excitement that contraindicates
fabrication, provides trustworthiness, and justifies
admission.Fresh complaints made by a child sexual assault
victim to her aunt shortly after the assault and to her
mother the next morning could also have probably been
admitted substantively under former Evid. R. 63(4)(b) as
excited utterances. State v. Taylor, 226 N.J. Super. 441
(App. Div. 1988). The court thus held that the
admission of the statements as fresh complaints was not
plain error. (See also Fresh Complaint, supra).F. Included HearsayOften hearsay evidence will include another hearsay
statement. Such included hearsay evidence is generally
admissible under N.J.R.E. 805, if each level of hearsay
falls within an exception to N.J.R.E. 802. For example,
in State v. Lyle, 73 N.J. 403, 411-13 (1977), the Supreme
Court held that a witness could testify that shortly before
his murder, the victim stated that defendant said “I know
you’re there Egbert -- you better get out of my house.”